Long before the Dec. 1, 2015, amendments to the Federal Rules of Civil Procedure (FRCP), the American College of Trial Lawyers’ (ACTL) Task Force on Discovery and Civil Justice found that the then “existing rules structure does not always lead to early identification of the contested issues to be litigated, which often leads to a lack of focus in discovery. As a result, discovery can cost far too much and can become an end in itself,” Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and Civil Justice and The Institute for Advancement of the American Legal System (March 11, 2009), at 2. Rule 26(b)(1) of the FRCP has since been amended to increase the emphasis on proportionality, including the importance of discovery in resolving the dispute.

Courts have provided helpful guidance regarding the important distinction between “wanted” and “needed” information. In Apple v. Samsung Electronics, Case No. 12–cv–0630–LHK (PSG), (N.D. Cal. Aug. 14, 2013), the court stated that it’s “senseless to require Apple to go to great lengths to produce data that Samsung is able to do without.” Pertile v. General Motors, Civil Action No. 1:15-cv-00518-WJM-NYW, (D. Colo. March 17, 2016), instructs that “relevance has never been the only consideration under Rule 26″ and that “necessity” and not “might yield helpful information,” is the standard. To establish proportionality, you must think like a trial lawyer: in many situations the importance of the discovery in resolving the dispute may trump the other four proportionality factors in Rule 26. If proposed discovery is not likely to be important in resolving the issues, the scope of discovery may be narrower, even if the monetary amount in controversy is significant, (The Sedona Conference, The Sedona Principles, Third Edition (2017 Public Comment Version) (Principle 2, Cmt. 2a)).

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